Can Communities Enact Sunday Closing Ordinances–Part II

A more than sufficient number of signatures have been affixed to a referendum that will put a recent Highland City ordinance, lifting a restrictions on Sunday business operations, on the ballot this November (1,893 were validated versus the required 889). So now let the debate begin. See Part I for background info or click here to see a list of all posts on this subject from multiple Highland residents. If you want a good chuckle read “An Alternative Solution For Highland’s Revenue Problem that Increases Freedom”.

Well actually is has already begun. Local newspapers have published several articles, Facebook and blog posts have been written with a number of comments and replies (1). I’ve found that opponents to Sunday restrictions fit one or more of the following categories:

• Strict libertarians who are opposed to most if not all restrictions on property rights.
• Those who, although they may value a common day of rest, do not wish to “impose” that value on others.
• Those who rebel at the thought of religious underpinnings to any law or ordinance. They may value a common day of rest but don’t want to feel like they are being told what to do.
• Those who have no interest in a common day of rest or those who value the potential tax revenue from businesses more than a common day of rest.

Those that support Sunday restrictions include:

• Those who value a common day of rest and believe it benefits the community as a whole.
• Those who want to limit business growth in our small community.

Below are three of the most frequent comments by opponents of Sunday restrictions on business. They represent valid points of views or questions. My responses to each follows:

1. While I personally don’t shop on the Sabbath I don’t want to impose my values on others.
   
   First of all, Highland is not forcing any resident to not shop on Sundays. Although this issue does coincide with a religious value it is really about the community saying we want a break from 7x24 commercialism, want a day set aside where they have a reduced work obligation and want to maintain our unique environment (at least as it relates to most other nearby towns).
   
   Second, society and government do impose values on citizens every day. Our entire criminal code is based on values and much of our civil code as well. For example, should lying really be a crime? Shouldn’t the listener bear an obligation to determine the truth of a statement? Of course I am being facetious but isn’t it a fair question to ask. Punishing liars imposes the value of honesty on others and horror or horrors lying violates one of the 10 commandments. Should we therefore be opposed to perjury and truth in advertising regulations because they are an attempt by the government to promote religious values?
   
   If a majority of the residents of a community value a common day of rest, which benefits include a reduced work obligation on the part residents who work there and an increased opportunity to spend time with family and friends and attend church, why should they give up these benefits? Should they be forced to strike down an ordinance which supports their values because a few may be “offended.” Residents who wish to shop have plenty of nearby choices. 
   
   Lastly, the claim that we are imposing the religious values of the majority LDS community is in reality demeaning to both LDS and non-LDS residents. It implies that members of the LDS faith arrogantly believe they are somehow the only people who really believe in the 10 commandments. It also suggests that you have to be a member of a religion or any religion to value Sunday closing, which is demonstrably not the case. A majority of people that I know in Highland who are not LDS support the Sunday closing restriction for variety of reasons (the same in fact as their LDS neighbors); they would prefer that Highland remain a largely bedroom community, they believe the current policy enhances the value of their property, they like the increased opportunity they have to spend time with their children on Sunday because their youth have don’t have to work on Sundays if they have a local job, they believe that the Sunday closing policy helps small businesses compete with large national ones … . 
   
   
2. Government shouldn’t regulate when a business can be open. Let the free market decide.
   
   For me, this is the most compelling argument against Sunday restrictions. There are however some problems with it; assuming you believe that cities can enforce some regulations with respect to businesses (what kind, when, how loud, restrictions on signage … ).
   
   The first issue is that while a business may be located in a city its’ customers do not necessarily reside in the same city. If you delegate a decision about a business to the free market (its customers) then you have taken the decision out of the hands of residents who would be impacted and given it to patrons who would not necessarily be impacted by the business location. To make the point let’s say a strip club were to open in Highland. While most residents would not patronize it and do not want it in their city, the club is a business success because there are no other similar establishments within 25 miles and the club is able to draw customers from a wide area. So the club flourishes and endures in spite of the will of the residents.
   
   Most people would not argue against restrictions on the hours of operation for a business located adjacent to a residential area if it generated a lot of noise and therefore would disturb residents during normal sleeping hours (e.g. must be closed 12 AM to 6 AM). If a majority of the residents of Highland value the benefits the community receives by having a common day of rest, is accommodating them really much different from catering to residents who want peace and quiet at night? Both are restrictions on hours of operation.
   
   To my knowledge, all businesses operating under the current Sunday restriction located here knowing about them (prior to the enactment of the ordinance restricting business operations on Sunday, retail businesses were subject to conditional use constraints that included hours of operation and closing on Sundays);  in some cases they located here because of them. Essentially, they freely signed a contract with the city (i.e. the residents) agreeing to the conditions of operation to get a valid business license. Why should the residents or businesses be forced to abrogate this contract? Note, Kohler’s is a local grocery store chain that is closed on Sunday’s regardless of location.
   
   In the case of some businesses their franchise agreements will force them to open on Sunday if the Sunday restriction is eliminated. In these cases it does not matter if opening on Sunday is profitable or whether the owner wishes to remain closed on Sunday – the business will be required to open.
   
   You may also want to read Blackstone’s comments on entering a society and liberty. Here is a relevant excerpt from his commentaries “But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws which the community has thought proper to establish”. Note, the surrounding text is interesting as well. Click on the quote to see it in full context. John Locke made a similar point in a work entitled “Two Treatises on Government" pages 297 – 300.
   
   
3. It is not American and therefore must be unconstitutional.
   
   Let me share a number of points. First of all contrary to popular opinion the Constitution does not contain the phrase “separation of church and state”. The first amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; … .” The intent was to prevent the Federal government from creating or supporting a specific denomination as the national religion as was prevalent in Europe.
   
   Sunday closing laws enacted by states, counties, and cities are far removed from establishing a religion. Moreover the fact that any law or ordinance coincides with a religious tenet does not mean that there are not secular benefits to the same. In upholding the Constitutionality of ordinances in Maryland that restricted Sunday commerce in an 8 to 1 decision the Supreme court noted among other things that “The present purpose and effect of most of our Sunday Closing Laws is to provide a uniform day of rest for all citizens; and the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals.”
   
   It is also interesting to note that all 13 colonies had laws restricting Sunday commerce prior to the founding of the United States and that all 13 states maintained Sunday regulations after the Constitution was ratified. The meant that a majority of the legislatures of each state and the governor of each state approved of Sunday restrictions. Some of these men were considered Founding Fathers and/or fought for liberty in the Revolutionary War.
   
   For example, In 1786 Virginia enacted two pieces of legislation. Both were drafted by Thomas Jefferson in 1779 and introduced by James Madison. The first was entitled “An Act for Establishing Religious Freedom”. It essentially forbade the state from using tax money to fund religious teachers. The second was, “A Bill for Punishing Disturbers of Religious Workshop and  Sabbath Breakers.”(2). In 1799 Virginia reviewed its laws to ensure that they were consistent with the Act for Establishing Religious Freedom and the first amendment. Although some laws were repealed in the process the Sabbath restrictions remained in place. 
   
   
4. The City will benefit through increased tax revenues because of increased business activity.

For those who do not value a common day of rest this is a valid issue. To those who do value a common day of rest but buy into this argument I would simply ask do your values really have a price? Studies have been done which “suggest that Sunday closing laws do not affect the overall level of retail activity in a region in a significant manner." See “Blue laws Impact on regional retail activity”, Douglas W. McNeil & Shirley S. Yu.

With respect to Highland specifically, the city did no studies to determine the impact on revenue (and expenses) before the city council repealed the Sunday closing restriction. They did however acknowledge that they were not aware of any retail businesses would open a Highland store should the Sunday restriction be lifted. Thus, what can be said with certainty is that there will be no meaningful short-term impact to city revenues.

I believe that the Sunday restrictions previously in place in Highland support an important shared community value. A common day of rest for the community is beneficial to individuals and families. Lest anyone think this is somehow the unique thinking of a backwards community one need only look to Europe where most countries have restrictions on Sunday business operations. Even in the US there are counties and cities where the restriction still exists. For example, Bergen County New Jersey; where a Sunday restriction on retail remains in place today. It is home to the only IKEA in the nation that is closed on Sundays (see Bergen; Sunday-Closing Law Retained in New Jersey County). The Sunday restriction was the subject of a referendum in 1993.

In Bergen County the debate was “largely about convenience and competitiveness, on the one hand, and the maintenance of suburban tranquility, on the other. The thought of clogging major highways and local streets for a second weekend shopping day has always galvanized strong opposition here.

It was the county's largest newspaper, The Record, and several major merchants, including Bradlee's and the Riverside Square mall in Hackensack, that initiated the repeal drive in the summer.

The newspaper expected to benefit from fresh advertising revenue, and the merchants hoped to attract the Sunday business that now goes to malls in Rockland County, N.Y., and Passaic, Hudson and Essex Counties in New Jersey.

But store owners in the smaller Main Street shopping districts around the county were concerned that a seventh day of mall shopping would force them to open, too, putting pressure on tiny sales staffs and adding more in overhead than in profit.”  —New York Times, 3 Nov 1993.

Of note, Paramus, a community in the county that is home to 5 of Bergen county’s biggest malls has its own Sunday closing ordinance in place on top of the county’s. It is a community not too dissimilar to Highland in size, income and home price but clearly a community that is not dominated by members of the LDS faith.

• Population: Paramus 26,342, Highland 15,523
• Median income: Paramus $102,278, Highland $93,535
• Average home cost: $578,499, Highland $455,032

As our nation becomes more and more commercialized it is taking a toll on individuals as families. In a 1999 survey of retail employees SFS/Infratest found the following:

Changes in personal situation of full-time employees because of longer opening hours (%)

Personal Situations	Improved	Deteriorated
Reconciliation of work and private life	8.9%	46.8%
Time for family life	5.3%	41.7%
Opportunities for leisure time	14.1%	35.2%
Time for further training	4.0%	4.0%
Exhaustion after work	2.9%	30.9%
Relation to customers	18.5%	8.5%
Income	13.5%	2.3%

The same study indicates the following statistics which I found counter-intuitive:

Development of employment in shops with longer opening hours, 1996/9 (%)

No change in employment levels	43%
Additional positions	21%
Fewer positions	36%

Change in retail employment by type of worker 1996/9 (%)

Type of Worker	Change in Employment
Full-time	-11.1%
Part-time (liable to social security)	-5.2%
"Marginal" part-time employment	2.5%
Trainees	-2.5%
Owners/family members	-1.3%
Total	-5.8%

This indicates that counter to claims by some supporters of the repeal that opening on Sunday will not necessarily create employment opportunities.

The more I research the stronger my personal conviction that Highland residents have every right and every reason to retain the Sunday closing ordinance. With all the criticism that has been raised in articles and online posts. I wonder when did standing up for a virtue, something that supports faith and family, become a vice. Having a community be allowed set its standards (local control) seems to me to be a freedom for which our Founders fought.

That said I’m appreciative of Dallin H.Oaks counsel from a talk he delivered on September 11, 2011 entitled “Truth and Tolerance”.

“Second, when believers seek to promote their positions in the public square, their methods and their advocacy should always be tolerant of the opinions and positions of those who do not share their beliefs.  We should not add to the extremism that divides our society.”

In closing I’m reminded of these words from George Washington in his inaugural address, “… we ought to be no less persuaded that the propitious smiles of Heaven, can never be expected on a nation that disregards the eternal rules of order and right, which Heaven itself has ordained;.”

And these from his farewell address:

“Of all the dispositions and habits, which lead to political prosperity, Religion, and Morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of Men and Citizens. The mere Politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connexions with private and public felicity. Let it simply be asked where is security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect, that national morality can prevail in exclusion of religious principle.”

Now do I think that those who disagree with restrictions Sunday business operations by local government are bad, or have ill intent. Certainly not! I have friends in my neighborhood; good moral people whom I respect, that hold this view. They simply draw the line as to where government should act at a different point than I do. Of course, in this case “government” is not some amorphous entity or limited set of people, but the residents of our city that will be drawing the line. Whichever, way it turns out will be what the community wants. Since we have the right to make that choice then we should all respect that decision when it comes.

Note, I will likely be revising/updating this a few times before the election in November so if this is of interest please check back from time to time.

Additional Sources of Information:

• For a list of all posts in my blog that discuss the Sunday Opening issue click here.
• Blue Laws: Impact on Regional Retail Activity, Douglas W. McNeil & Shirley S. Yu, 1989
• “Can We Get past Clichés in Cedar Hills?”, Brett H. Latimer
• Commentaries on the Laws of England, Vol I, William Blackstone, page 125.
• “Continuing Education from Cedar Hills”, Paul T. Mero, The Sutherland Institute, 25 May 2005
• “Freedom to Close Businesses on Sunday is Worth Preserving”, The Sutherland Daily, 5 Nov 2012
• New Jersey Statutes - Title 40A Municipalities and Counties - 40A:64-1 Certain Sunday sales prohibited (Bergen County, New Jersey)
• No liberty is violated by Highland’s Sunday closures”, Paul Mero, The Sutherland Daily, 1 Nov 2012
• Paramus Borough, New Jersey Sunday Activities Code
• Save Our Sundays, 28 July 2012
• “Studies Relaunch the Debate on Further Liberalization of Shop Opening Hours”, Eironline, Dec 1999. 
• “THE 1993 ELECTIONS: Bergen; Sunday-Closing Law Retained in New Jersey County”, New York Times, 3 Nov 1993. Note, restriction
• “The Cost of Repealing Blue Laws”, MITnews, 21 May 2008,
  ”Repealing America's blue laws not only decreased church attendance, donations and spending, but it also led to a rise in alcohol and drug use among people who had been religious …”
• Two Treatises on Government, John Locke, see sections 119-131
• US Supreme Court: McGowan v. Maryland
• “Would Thomas Jefferson Display the Ten Commandments?”, David W. New, Esq.

Additional LDS Sources

• “Israel, Israel, God Is Calling”, Elder Jeffrey R. Holland, Sept 9, 2012, See the sections entitled “Judge Righteous Judgments” and  “Some Issues and Laws Have Eternal Consequences.” For those who watch it rather than read it (I recommend watching it), minute’s 30-48 (especially 40-48) have relevancy, but the entire speech is well worth a listen. His remarks start at minute 13 if you want to skip the intros and choir.
• “Law and Becoming”, Elder D. Todd Christofferson, Feb 4, 2011
• “O America, America”, Elder Mark E. Peterson, Nov 1979
• “Truth and Tolerance”, Elder Dallin H. Oaks, Sep 11, 2011, Parts IV and V are particularly relevant.
• The Family: A Proclamation to the World, The First Presidency and Council of the Twelve Apostles, Sep 23, 1995. The last paragraph states the following “WE CALL UPON responsible citizens and officers of government everywhere to promote those measures designed to maintain and strengthen the family as the fundamental unit of society.” Given the prior references that discuss the benefits of a common day of rest and the impact of changing to Sunday opening it is clear to me that a common day of rest is beneficial to families.
  

---

Footnotes

---

Articles from 2012 …

Provo Daily Herald Articles, Editorials and Letters to the Editor:

• 3/25/ Highland sets hearing on Sunday opening (0 comments)
• 3/29 Highland's Sunday closing issue draws crowd (0 comments)
• 3/31 Beehives and Buffalo Chips (0 comments)
• 4/01 Satan at work in Highland (0 comments)
• 4/04 Highland’s compelling interests (0 comments)
• 4/16 Highland likes businesses closed on Sunday (0 comments)
• 4/19 Highland OKs Sunday opening, delays change until November vote (0 comments)
• 4/21 Beehives and Buffalo Chips (0 comments)
• 6/27 County says it won't put Sunday opening on ballot (0 comments)
• 7/14 Sunday opening may go to referendum (0 comments)
• 7/20 Highland council votes to allow businesses to open on Sundays (4 comments)
• 7/27 Highland residents launch Sunday shopping petitions (13 comments)
• 7/29 Highland’s choice: Freedom or not? (28 comments)
• 8/07 Organizers ready 2,100 signatures to stop Sunday sales (8 comments)
• 8/09 What about the employees (6 comments)
• 10/07 Highland to Hold Debate on Sunday Opening
• 10/31 Whited sepulchres in Highland (5 comments) – Interesting choice of titles. No bias here :)
• 10/31 Pro-Sunday opening signs vandalized in Highland (7 comments)
• 11/02 More Highland Signs Reported Stolen (5 comments)
• 11/07 Highland voters reject Sunday opening (19 comments)
• 11/11 Short-sighted in Highland (6 comments)

Deseret News Articles, Editorials and Letters to the Editor:

• 4/16 Editorial: Misguided Tax Policy (9 comments)
• 4/19: Councilman's anonymous letter lays groundwork for repeal of no Sunday shopping in Highland (1 comment)
• 7/17: Highland City Council votes to allow businesses to open on Sunday (10 comments)
• 8/17: Battle rages in Highland over Sunday business restrictions (11 comments)
• 10/06 Will Highland Allow Businesses to be Open? Voters Will Decide.(11 comments)
• 10/09 Highland Residents Meet to Discuss Sunday Business Hours (2 comments)
• 10/31 Pro shopping on Sunday signs vandalized in Highland (1 comment)
• 11/7 Highland Residents Vote to Keep Businesses Closed on Sundays (6 comments)

Salt Lake Tribune Articles, Editorials and Letters to the Editor:

• 4/27: Highland, Utah, asking voters to let business open on Sunday (36 comments)
• 7/18: Highland businesses can open on Sunday — for now (29 comments)
• 10/22: Highland voters to decide if businesses can be open on Sunday 
• 11/02: Keep Sunday closing (40 comments)

Local Newscasts:

• 8/07: ABC4  Petitions gathered to take Highland Sunday sales decision to vote
• 8/27: KUTV  Highland Could Open For Business On Sunday
• 10/25:Fox13 Highland to vote whether businesses can operate Sundays
• 11/06: Fox13 ‘God Said Closed Sunday’, political signs create a stir in Highland

Libertas Institute (libertarian organization)

• Keep the Sabbath Day Holy, or Else! (29 comments)
• Cartoon (89 comments)
• Connor Boyack (Libertas Institute founder) tagged me in a p Facebook post July 30 (69 comments).

Text of “A Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers”

This bill was first drafted by Jefferson in 1779 then submitted to the Virginia legislature by James Madison in 1785 and put into law in 1786.

“Be it enacted by the General Assembly, that no officer, for any civil cause, shall arrest any minister of the gospel,(1) licensed according to the rules of his sect, and who shall have taken the oath of fidelity to the commonwealth, while such minister shall be publicly preaching or performing religious worship in any church, chapel, or meeting-house,2 on pain of imprisonment and amercement, at the discretion of a jury, and of making satisfaction to the party so arrested.

“And if any person shall of purpose, maliciously, or contemptuously, disquiet or disturb any congregation assembled in any church, chapel, or meeting-house,(2) or misuse any such minister being there, he may be put under restraint during religious worship, by any Justice present, which Justice, if present, or if none be present, then any Justice before whom proof of the offence shall be made, may cause the offender to find two sureties(3) to be bound by recognizance in a sufficient penalty for his good behavior, and in default thereof shall commit him to prison, there to remain till the next court to be held for the same county; and upon conviction of the said offence before the said court, he shall be further punished by imprisonment and amercement at the discretion of a jury.

“If any person on Sunday shall himself be found labouring at his own or any other trade or calling, or shall employ his apprentices, servants or slaves in labour, or other business, except it be in the ordinary houshold offices of daily necessity, or other work of necessity or charity, he shall forfeit the sum of ten shillings for every such offence, deeming every apprentice, servant, or slave so employed, and every day he shall be so employed as constituting a distinct offence.

Report, p. 59. Text of Act as adopted is in Hening, xii, 336–7.

Bill was presented by Madison 31 Oct. 1785 and on 14 Dec. postponed to next session; at the Oct. 1786 session it was brought up again, amended by both House and Senate, and passed on 27 Nov. (JHD, Oct. 1785, 1828 edn., p. 12–15, 92; same, Oct. 1786, p. 16–17, 49, 52, 64, 127). The Act as adopted and the Bill as proposed agree except as noted below; Act was suspended until 1 July 1787 (Hening, xii, 410–11).

1. The Act reads: “minister of religion.”
2. The Act reads: “or other place of religious worship.”
3. The Act reads: “securities.”

Source: The Papers of Thomas Jefferson, p 555